The President has recently put his signature on the Constitution Amendment Bill (124th) in order to bring about a major change in the method of appointment of the Supreme Court and High Court Judges. So, the National Judicial Appointment Commission (NJAC) Bill passed by Parliament in August last year has become a statutory law and it has scrapped the 20-year old ‘Collegium System’ of appointments. Of course, such a Bill requires the ratification of at least half of the provinces of the Indian federation. But as sixteen of the twenty-nine units have accepted it and President has given his ascent, the Centre is now legally empowered to form the Commission.It will be headed by the Chief Justice of India.Two senior Judges of the apex court, two ‘distinguished’ persons and the Law Minister will be the other members of the body.

The earlier system was replaced because the Government felt that it had utterly failed to bring about transperancy and justice in the method of appointment. The official view is that under the previous method, some able and deserving jurists were deprived of such opportunity. Moreover, it has been alleged that some appointments had been made due to an undue link between the incumbents and some of the members of the collegium. Above all, it has also been pointed out that the collegium was composed by some chosen Judges and that the President had to accept a name from the panel prepared by them. As such, the Government had no voice in the recruitment. According to the Law Minister,the new system would surely offer the Government an opportunity to play the needed role in this matter. Thus, in his view, this method would bring about a proper balance between two organs of Government.

But, in this connection, it must be noted that the mode of such appointment must be conducive to and consistent with the maintenance of an ideal judicial system, because an independent and impartial judiciary is the cornerstone of democracy – (Dr HH Das – India: Democratic Government And Politics, p. 218). It settles the disputes between the Centre and the provinces in the federal system,protects fundamental rights of the people, preserves the Constitutional arrangement and resolves all legal conflicts of the citizen. So, the existence of an independent and impartial judiciary is an assential pre-requisite of the democratic system. This is why, BR Agarwala has observed that ‘there has always been insistence upon the superior integrity of judicial administration’ – (Our Judiciary, p. 205).

However, judicial independence cannot come up automatically or as a natural affair. It must be obtained by positive and effective efforts. There are practically some pre-conditions in this matter and the proper method of appointment of the Judges is one of them.

In fact, there are three known methods of appointment of the Judges – (i) election by the people, (ii) election by the legislature and (iii) nomination by the executive head.

Of course, election by the people seems to be highly democratic. But, HJ Laski has rightly opined that "it is, without exception, the worst" – (A Grammar of Politics, p. 545). It may politicise the judges, because in such case they have to seek people&’s votes for their appointment. Moreover, it means appointment for five years – but the serene job badly requires long experience and personal maturity which the short-term appointment can hardly offer.Above all, ordinary people can by votes hardly choose the best candidate. Election by the legislature is also defective, because it may similarly politicise the judiciary by choosing incompetent and partisan jurists.

Therefore appointment by the executive Head may seem the best alternative. But it too has a potential for danger because the latter may choose judges from a purely political viewpoint. This is why Laski has opined that when the executive Head is empowered to do this job, his right needs to be duly fettered by a Constitutional mechanism – a panel of chosen Judges should prepare a list of names and the latter must pick one of them for the job.

Interestingly, our Constitution has partially adopted such advice. As Article 124 indicates, before appointing a Judge of the apex court, the President has to consult with some chosen Judges of the superior courts and in the case of appointment of a Judge other than the Chief Justice the latter shall always be consulted.

Under Art. 217 (1), the High Court Judges are chosen by the President after consultation with the Chief Justice of India, the Governor of the state concerned and the Chief Justice of the relevant High Court. As Dr VD Mahajan has observed, ‘This consultation is made obligatory in order to avoid the political pressure put by the Council of Ministers’ – (The Constitution of India, p. 162). The makers fondly thought that such consultation would ensure proper and apolitical choice in this matter. As Dr BR Ambedkar, the chief architect of our Constitution, put it, ‘There should be consultation of persons who are ex-hypothesis qualified to give proper advice’ – (CAD Vol. VIII, p. 258).

But, significantly, these Articles do not in legal terms indicate that the President must act upon their advice in making appointments. So, Dr SC Kashyap has rightly observed that ‘such consultation does not mean concurrence’ – (Our Constitution, p. 105). In other words, the President could previously, take his own decision even after the consultation with such Judges. This is why it has been alleged that political pressure has often decided appointments and that sometimes even the best legal talents have purposely been kept outside the judicial Bench.

So, two decades ago, the ‘collegium system’ was introduced in order to curb political influence in judicial appointment. But now the rulers at the Centre feel this system too is highly defective and that it needs to be duly rectified without any delay.

However, it is difficult to predict whether or not the new system would bring in real improvement. The proposed Commission would consist of three Judges,the Law Minister, who is surely a politician and if two distinguished persons are deliberately chosen from the political field, then the new system would not augur well and politics would not be kept at bay. But at any cost the integrity and impartiality of the judiciary must be maintained in order to keep the courts as temples of justice.

The writer is a Griffith Prizeman, Author and Former Reader, New Alipore College